Alvarez-Moreno

This case raises a thorny double jeopardy issue: whether a district court may, in the absence of a motion for new trial by the defendant, order a new trial for a defendant who was tried before the judge but never properly waived his constitutional right to a jury trial.

Defendant-Appellant Gabriel Alvarez-Moreno was indicted in December 2008 on two counts of transporting an illegal alien for profit, in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii) and 1324(a)(1)(B)®. Less than two weeks before Alvarez-Moreno’s case was to be tried before a jury, Alvarez-Moreno and the Government agreed to a bench trial instead. When the parties notified the district court of that agreement, the court entered an order vacating the jury trial and setting a bench trial. In the same order, the district court directed Alvarez-Moreno to file a waiver of jury trial, as required by Rule 23(a)(1) of the Federal Rules of Criminal Procedure.

The two-day bench trial concluded on October 15, 2009. Alvarez-Moreno was found guilty. No one noticed at that point that Alvarez-Moreno had not filed the waiver of his right to a jury trial.

A few weeks later, Alvarez-Moreno’s attorney filed a “Motion to Set…